Intellectual propert law Essay Example | Topics and Well Written Essays - 4000 words

Intellectual propert law - Essay ExampleMoreover, Bettys business was apparently called Bettys from the period spanning 1986 to 1994. However, the name Bettys was never formally trademarked, at least the facts do not indicate that it was. If the name was trademarked, then obviously Betty would have a stronger case. However, Betty might have a cause of act for passing off. Passing off, traditionally a tort that referred to attempting to represent ones goods as the goods of somebody else, has the modern definition of using a someones goodwill and reputation in an attempt to benefit oneself, and, in the process, injuring the original persons good name, reputation and connections (Taittinger and others v. Allbev Ltd. and others 1994 4 All ER 75). There are five elements in the tort of passing off, and they are 1. A misrepresentation 2. Made by a trader in the hang of trade, 3. To prospective customers of his or ultimate consumers of goods or services supplied by him 4. Which is work out to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence and 5. Which causes actual damage to a business of goodwill of the trade by whom the action is brought or will probably do so (Erven Warnick BV v. J Townend & Sons (Hull) Ltd. 1979 2 All ER 927). In examining these elements, it is unsure whether Betty can prevail on the tort of passing off. The first element is that in that location must be a misrepresentation. Calling her company Bettys Produce, when jennet had previously worked for Betty for a long period of time, and Bettys business was known as Bettys for a number of years would certainly seem as if Jenny is misrepresenting her own produce as Bettys. Jenny was no doubt extremely associated with Betty in the mind of the consumers and the people to whom Betty catered, so those people probably would assume that Jenny was still with Betty, and that Jennys produce was Bettys produce. Jenny would be using Bettys n ame in the course of trade and to prospective customers, and these resembling customers were also Bettys customers, so those elements are satisfied as well. Whether it was calculated to damage the goodwill of Betty is a question for which there is no clear answer. Certainly it seems that Jenny was attempting to capitalize on Bettys goodwill and reputation, but whether or not she wanted to injure Betty is questionable. However, as long as damage to Jennys reputation is reasonably foreseeable, this element is satisfied as well. Betty worked unmanageable to establish a firm reputation for her products. Jennys products might not have the same standard. If Jennys products are not the same standard as Bettys products, then Jenny would be damaging Bettys reputation. a misrepresentation by B that his inferior goods are of a superior quality, which is that of As goods, whereby people buy Bs goods instead of As, is actionable (Reckitt and Colman Products Ltd. v Borden Inc. and Others, 1990 1 All ER 873). Jenny was clearly trying to represent her products as Bettys products, in an effort to get these restaurants to buy her products instead of Bettys products, so this element is satisfied as well. As to the final element, that the passing off causes actual damage to Bettys reputation, actionable damage can be that which is gradual depreciation to the reputation that Betty